Encyclopedia of the Great Plains

David J. Wishart, Editor


In United States v. Sioux Nation of Indians (1980), the U.S. Supreme Court held that an 1877 act of Congress, by which the United States wrested control of the Black Hills of South Dakota from the Sioux Indian Nation, constituted a "taking" of property under the Fifth Amendment, giving rise to an obligation to fairly compensate the Sioux. The Court affirmed a prior decision of the court of claims, which had awarded the Sioux $17.1 million for the taking of the Black Hills, and further held that the tribe was entitled to interest on that amount from 1877. By the late 1990s, the amount due the Sioux had risen to more than $600 million–a payment that the tribe still refuses to accept, choosing instead to continue to seek the return of the land itself.

The 1980 decision represented the judicial culmination of more than sixty years of litigation and lobbying in the Court of Claims, the Indian Claims Commission, the U.S. Congress, and the Supreme Court, in which the Sioux sought retribution for more than a century's worth of bad faith and fraudulent dealings relating to the Black Hills. The fundamental basis for the continuing claim is the 1868 Fort Laramie Treaty, in which the government pledged that the Great Sioux Reservation, including the Black Hills, would be permanently preserved for the "absolute and undisturbed use and occupation" of the tribe. The treaty further provided that no change to the reservation boundaries would be effective unless approved by at least three-fourths of the adult male population of the Sioux Nation. In 1877 Congress enacted a statute that, in effect, unilaterally abrogated the provisions of the 1868 treaty. The act codified the terms of a new treaty, signed under military duress by only about 10 percent of the adult male Sioux population, under which the Sioux purportedly ceded another 7 million acres, including the Black Hills, to the United States.

Some forty years after losing the Black Hills under those dubious circumstances, the Sioux embarked upon a long judicial and legislative quest for their return. In 1920 they brought suit in the Court of Claims, alleging that the government had taken the Black Hills without just compensation in violation of the Fifth Amendment. The Court of Claims ultimately dismissed that claim in 1942, and the Sioux then reasserted their arguments before the Indian Claims Commission, beginning in 1946. The commission held that the 1877 act was in fact a compensable taking for which the Sioux were entitled to $17.5 million, without interest. On appeal, however, the Court of Claims again dismissed the Sioux claim, holding that the tribe's arguments were barred by the Court's 1942 decision. There the matter stood until 1978, when the Sioux obtained a special act of Congress authorizing a new review of the tribe's Black Hills claim without regard to the earlier decisions of the Court of Claims. This time the Court of Claims held that the government had indeed acted in bad faith in taking the Black Hills and that the Sioux were entitled to $17.1 million in damages, plus interest from 1877. When the Supreme Court affirmed the Court of Claims ruling in 1980, the Sioux's long decades of legal tenacity were seemingly vindicated.

Yet even before the Sioux achieved this monumental Supreme Court victory, controversy arose within the tribe and between some members of the tribe and their attorneys over whether or not a monetary judgment should even be sought, much less accepted. For growing numbers of Sioux, monetary compensation was not acceptable as a resolution of their claims.only the return of the sacred Black Hills themselves would suffice. Those sentiments have controlled subsequent events in this prolonged drama, and the Sioux continue to refuse to accept the payment dictated by the Court's decision.


Mark R. Scherer University of Nebraska at Omaha

Lazarus, Edward. Black Hills, White Justice: The Sioux Nation versus the United States, 1775 to the Present. New York: HarperCollins, 1991.

Pemberton, Richard, Jr. "'I Saw That It Was Holy': The Black Hills and the Concept of Sacred Land." Law and Inequality: A Journal of Theory and Practice 3 (1985): 287–311.

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